Willmore Makumire v Minister of Public Service, Labour and Social Welfare and Attorney-General of Zimbabwe

The applicant was suspended from work on 10 February 2015 on allegations of theft by conversion of US$100. Following a disciplinary hearing conducted under the Labour (National Employment Code of Conduct) Regulations, 2006, he was found guilty and dismissed. Instead of appealing to the Labour Court under section 92D of the Labour Act, the applicant referred the matter to a labour officer under section 8(6) of the Code of Conduct. After various procedural disputes and amendments to the Labour Act, the matter was referred back and forth between the labour officer and the Labour Court. The labour officer eventually declined jurisdiction, finding the matter was improperly before him. The Supreme Court struck the matter off the roll on jurisdictional grounds. The applicant then approached the High Court claiming section 93(5a) of the Labour Act violated his constitutional rights to equality (section 56(1)), administrative justice (section 68(1)), and access to courts (section 69(3)). The High Court declared section 93(5a) unconstitutional, requiring confirmation by the Constitutional Court under section 175(1) of the Constitution.

• Whether the question of the constitutionality of section 93(5a) of the Labour Act was properly before the High Court
• Whether section 93(5a) of the Labour Act violates sections 56(1), 68(1) and 69(3) of the Constitution
• Whether the applicant was injured by the operation of section 93(5a) of the Labour Act
• Whether the order of constitutional invalidity would have any practical effect on the applicant
• The proper interpretation and application of section 167(3) and section 175(1) of the Constitution regarding confirmation of declarations of invalidity

IT IS ORDERED BY CONSENT THAT: 1. The order of the court a quo given in terms of section 175(1) of the Constitution declaring section 93(5a) of the Labour Act [Chapter 28:01] to be in conflict with sections 56(1), 68(1) and 69(3) of the Constitution is not confirmed in terms of section 167(3) of the Constitution. 2. There shall be no order as to costs.

A constitutional challenge to legislation is only properly before a court where: (1) the party challenging the law can demonstrate that they have been harmed by the operation of that law; (2) the order sought will have practical effect on the protection of their rights; and (3) the constitutional question actually arises from the facts of the case. The Constitutional Court will not confirm a declaration of invalidity where the impugned provision did not injure the applicant and confirmation would have no practical effect. Courts must not anticipate constitutional questions in advance of necessity or formulate constitutional rules broader than required by the precise facts. Under sections 167(3) and 175(1) of the Constitution, the Constitutional Court must conduct a thorough independent investigation of constitutional validity and is not bound by lower court findings, even where proceedings are by consent.

The Court observed that confirmation proceedings are in the nature of a review, with the Constitutional Court exercising supervisory control over declarations of constitutional invalidity to control declarations made against the highest organs of State. The Court cited with approval the principles from Ashwander v Tennessee Valley Authority regarding judicial restraint in constitutional matters. The Court noted that the Labour Court had failed to determine the application for condonation that was properly before it, which vitiated its order. The judgment emphasized that section 93(5a) cannot be viewed in isolation from other provisions of section 93 of the Labour Act, particularly subsections (3), (5) and (5c). The Court expressed the general principle that it is "not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case."

This case establishes important principles regarding constitutional challenges in Zimbabwean law, including: (1) The Constitutional Court's supervisory role over declarations of constitutional invalidity made by lower courts; (2) The requirement that constitutional questions must be properly before a court - a party must demonstrate actual injury from the impugned law and that the relief sought will have practical effect; (3) Courts should not decide constitutional matters unless necessary and will not formulate rules broader than required by the facts; (4) The Constitutional Court is not bound by lower court findings and must conduct its own thorough investigation of constitutional validity; (5) Proper remedies must be pursued - using wrong procedures cannot give rise to valid constitutional challenges. The judgment provides guidance on the operation of sections 167(3) and 175(1) of the Constitution regarding confirmation proceedings and reinforces principles of judicial restraint in constitutional matters.